Journal Article

Comparative advertising and celebrity photographs—fair dealing under the CDPA 1988

Jonathan Griffiths

in Journal of Intellectual Property Law & Practice

Volume 1, issue 8, pages 515-523
Published in print July 2006 | ISSN: 1747-1532
Published online May 2006 | e-ISSN: 1747-1540 | DOI: http://dx.doi.org/10.1093/jiplp/jpl075
Comparative advertising and celebrity photographs—fair dealing under the CDPA 1988

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Legal context. Legal context. This article reviews the concept of ‘fair dealing’ under Copyright Designs and Patents Act 1988, section 30. It does so in the context of to recent cases concerning the fair dealing defence, IPC Media Ltd v News Group Newspapers Ltd and Fraser Woodward Ltd v BBC are considered.

Key points. The traditional approach of courts to ‘fair dealing’ is based upon a number of ‘factors’ considered relevant in determining whether a use of a copyright work is fair. The article argues that there are a number of problems with this approach. In particular, it claims that the approach is unsystematic and rests upon a number of questionable assumptions. It suggests that the decision of Hart J in IPC Media Ltd demonstrates these problems to a very significant degree. In contrast, that of Mann J in Fraser Woodward Ltd provides welcome guidance on the application of the concept of fairness in certain cases.

Practical significance. The criticisms made in this article highlight a number of discrepancies in the existing case law and suggest a need for closer consideration and greater discipline in decision-making in this area.

Journal Article.  6735 words. 

Subjects: Arbitration ; Intellectual Property Law

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